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On the Subject of the Downey / Hyde Child Support Enforcement and
Assurance Proposal - June/July 1992
Committee on Ways and Means,
U.S. House of Representatives

WRITTEN STATEMENT OF ROGER F. GAY,
INDEPENDENT RESEARCH CONSULTANT

For more than three years, I have conducted independent research on the child support reforms of the 1980s, first with Intelligent Systems Research Corporation where I completed two reports on child support guideline development, and more recently as an independent researcher and consultant. During this latter period, I have published articles on child support, spoken at national meetings, served as an expert witness in a federal case questioning the constitutionality of setting child support awards presumptively (currently in appeal), and have had my previous reports submitted in another federal case questioning the Federal Government's role in setting child support award amounts in non- AFDC cases. Although my studies and other activities in the area of child support have brought me in contact with a number of citizen groups on both sides of the issue, I submit my testimony as an independent researcher.

I would like to focus my testimony on child support enforcement and the proposal to develop a national child support guideline system which Mr. Downey has suggested should be modeled after the Income Shares approach.

In order to formulate rational and efficient policy on child support enforcement, it is necessary to find out the size of the child support payment problem and to be able to keep track of where we are; for example, how effective has past policy and s pending been. Unfortunately, we know neither today. I have formed two rather clear impressions from the existing statistical base and from a number of published studies. The first is that the record of voluntary payments by fathers who are fully employed, when there is a valid child support order is extremely good. It has been shown in particular that divorced fathers who have developed an emotional bond and are allowed continued contact with their children do not choose to abandon their children personally or financially. When there is no support order, and the mother does not wish to report the amount of money being received from the father, of course there is no way of knowing what is being paid or what role the father is playing in the family.

Something that I found extremely interesting in the July 1 testimony was the consistent conclusion that unwed fathers were very interested in their children. Together with the repeated evidence that fathers in the system, with great consistency take responsibility as much as they are able, it is evident that the political direction Congress has taken for the last decade is out of sync with the reality of the problems the Downey / Hyde proposal seeks to address.

The tough child support enforcement measures mandated in 1980 have been ineffective. Why have payment records worsened? There has already been discussion of the changing economic landscape. We all know that today, many two income families are straining. We know that unemployment is partly responsible and that statistics on non-payment most often repeated include the almost 50% share of mothers who do not have a support award; the amount they might receive being, rightly or wrongly, estimated. Since 1988, federally mandated presumptive child support guidelines have been responsible for award levels that are more than obligors can pay, and therefore have created a portion of the non- payment problem that did not previously exist.

We should remember that much public support was generated by a promise that taxpayers would benefit from stronger enforcement measures. Mr. Downey and Mr. Garfinkel are still sending this message. I have heard estimates of annual government losses in child support enforcement as low as $200 million. That is less than 40 percent of what the federal government loses, even after all the financial benefits have been accounted for. I have seen the low figure published by the U.S. Office of Child Support Enforcement, which subtracted $300 plus million in federal transfers received by states from $526 million in federal losses. There is no confirmation that the $300 million was actually a direct benefit to taxpayers, and it isn't clear that it should have been subtracted from the total amount. It seems to me at this point that the loss to taxpayers stands at least at the $526 million annual amount. Take that into account as you consider proposals to spend billions more.

Perhaps I should apologize to my friends in the legal profession before these next remarks, but I see a pattern that has emerged that I believe is very much related to legal training and the fact that so many Congressman have that background. In a typical divorce or custody case where there is a dispute, it is common for at least one attorney to attempt to vilify the non-client parent. The debate over child support and welfare in the 1980s appeared to be the national version of a divorce case, with Congress taking the role of deciding cases in the worst way possible; not individually, but on the basis of cultivated group prejudice. Between then and the early 1990s, the blame shifts back and forth from so-called "deadbeat dads" to "welfare queens." I don't believe that approach to policy development has served us at all well. Quite frankly, I believe the last thing we need is another decade of Congress representing itself as a pseudo-judicial branch of government, trying the aggregate child support case.

We have had federal child support enforcement and paternity establishment legislation since 1950. In 1975, the Child Support Enforcement and Paternity Establishment program was enacted, with the same expectation that surfaced in the 1980s; that such a program could (1) reduce public expenditures on welfare by obtaining support from non- custodial parents on an ongoing basis and by helping nonwelfare families get support so they could stay off public assistance, and (2) establish paternity for children born outside of marriage so that child support could be obtained for them. In the 1980s, these same goals were reemphasized with the Child Support Enforcement Amendments and The Family Support Act. What a fiscally responsible Congress should be asking now is why, after the most expensive child support enforcement experiment in U.S. history, doesn't so much evidence of failure lead to a change in direction, and why instead is it leading to suggestions, such as those in the Downey / Hyde proposal, of even more spending on more of the same?

Collection of support by the IRS, for example, can be no more effective than other automatic withholding programs. As pointed out in an article in the May, 1992 issue of Working Woman magazine; "This is going to hit the people who are most able or willing to pay -- and do." It doesn't put money in the account of an unemployed father in order to allow him to make a payment. It doesn't train or educate the young father so he can gradually take more responsibility for his family. What the 1980s child support reforms accomplished, was to provide billions of taxpayer dollars to enforcement agencies to count payments that would mostly have been made without their involvement, and then provided additional funds under federal incentive programs if they could do that efficiently.

If the goal of the sub-committee is to develop a bill to change private child support aspects of the welfare system into something that has a potential, long or short term, to reduce poverty, then it is necessary to rediscover the link between poverty and the child support problem. Through the 1980s and still to a lesser extent today, there has been a presumption that non-payment of child support is one of the greatest causes of poverty, at least among children. The inverse if far more likely; t hat a case of non-payment is caused by unemployment and poverty.

There are ways to quickly reduce the statistics on non-payment of child support. The two information sources that are most widely used are the Census Bureau survey of single mothers and records kept by states. Reports from single mothers are known to have a bias. If we were to continue those studies that survey non- custodial parents, that also provide employment information, we would have a more detailed picture of the causes of non-payment than we do now. From that information we could weigh the evidence on the need for national job training programs and other educational system reforms for example, as better alternatives to spending on child support enforcement.

State records offer a very simple challenge. New Jersey recently reported that a substantial number of invalid cases were showing monthly accrual. I don't think it's been any secret among most people who have studied this issue, that states have always done a reasonably good job adding people to their systems, but a completely inadequate job of taking them out when appropriate. Throughout a childhood, the state of jurisdiction can change many times, and each time a new record is started in a different state. The problem is that all previous states will still show an accumulation of an arrearage. In addition, states need to remove records when a child reaches the age of majority, and under any other circumstance that causes the order to become invalid. New Jersey at least, is trying to update its system with the help of computer software that can automatically generate letters to non- custodial parents who are listed as behind in payments. Other steps include providing information in the order that shows the date the child will reach age 18, or when the order will automatically become invalid. Their procedure has led to a substantial decrease in the number of cases in their system, especially those previously reported as past due. I am confident that scaling such a system up nationally would result in a dramatic decrease in the amount of child support arrearage reported by states.

Further gains would result by improving the technology used to calculate a child support award; which brings me to the second issue I would like to address; the proposal to create a national child support guideline. I understand that there are some women's groups that are particularly excited about this proposition. That is of course, not surprising since so far, the federal government has been extremely generous in its support of higher child support awards. The shift to federal control of domestic relations law has worked out to be the ultimate in venue shopping for women's groups interested in divorce. However, it is equally clear that there has been an adequacy gap - - a significant difference between what we have and what we need -- in research on child support award decision technology.

If child support guidelines are to remain a component of a national family policy, then that technology needs to be of absolutely the highest quality that can be created. So far, government has shown no interest in developing technology that can honestly be considered adequate, let alone high quality. What we have to remember about the current system is that proponents wanted to change from the typical Constitutional arrangement in which decisions are based on reasoned consideration of the weight of evidence presented in court; commonly called due process. Due to the absence of sufficient data on parental spending on children, deficiencies in child support science, and a complete lack of funding for engineering research on this problem, adequate child support technology has not been developed even to provide support for reasonable aggregate or macro-level decisions, let alone appropriate decisions in individual cases.

The Williams recommendations distributed by the U.S. Office of Child Support Enforcement, which I believe anyone with a strong interest in this subject must already be familiar with, have been the basis for the majority of state guidelines, and along with federal financial incentives have had an enormous political influence on the rest. Mr. Williams unfortunately, rested much of his policy judgement on results reported by Ron Haskins, et al. in a 1985 report entitled; Estimates of National Child Support Collections Potential and the Income Security of Female-Headed Families.

The Haskins work had nothing to do with child support doctrine which, in most states, had been based on the equal duty principle; the idea that both parents have an equal duty to provide financially for their children. Further expression of this principle was found in the idea that had been expressed in the vast majority of state statutes; that award amounts should be based on actual needs of children, and the relative ability of the parents to provide financial and other resources to meet those needs. What Mr. Williams and others implied in their work, was that Haskins, et al. had provided scientific evidence that child support orders decided under state law were too low; a conclusion that was actually well beyond the scope of their study. The higher awards projected by Haskins and then recommended to states by Mr. Williams resulted from implicit changes in child support doctrine. Those changes are contrary to the recommendations of the national panel on child support that Williams work was supposed to have reflected, and differences between the implied doctrine and existing state law were not sufficiently discussed to make clear that the recommended Income Shares method involved dramatic departures from existing law. States applying Mr. Williams recommendations later had to reduce some portions of their schedule after discovering that the method led to support awards that were actually more than the obligor's income. The corrections that have been put into place were only arbitrary and limited to the most obvious problem areas. No state has really fixed the fundamental problems of the Income Shares model.

Williams Income Shares model does not consider spending on children to be an important factor. Consideration for the "needs" of children was replaced by an arbitrary function for allocating non-custodial parent income between family members. In addition, neither Haskins nor Williams accounted for the large percentage of support that had traditionally been provided by non-custodial parents in direct support of children while the children are in their care, usually during periods of visitation. Under the majority of current guidelines the non-custodial parent must pay this share directly to the custodial parent, even though the custodial parent has been relieved of the actual expense. This can leave non-custodial parents without sufficient funds to support their children during visitation; therefore in practical terms, eliminating the possibility of obeying the support order and exercising visitation rights.

I have looked at these situations carefully, and see absolutely no legitimate government interest in redistributing income this way; especially at the expense of contact between the children and one of the parents. Before any collection effort can have legitimacy, the current system of presumptive award setting according to guidelines, whether implemented at the state or federal level, must be fixed. In many situations, it has led to awards that are too high, and at times the non-custodial parent cannot pay what is ordered even if visitation is given up. I should point out that this worsens the statistics on non and under-payment, and that harsher enforcement measures have not been -- and perhaps obviously cannot be -- effective.

It is obvious that existing policy encourages the disenfranchisement of a parent; something everyone seems to agree is terribly wrong. As I understand the goals of a national child support guideline, they are to increase award levels even further and make them uniform between states. That would be an expansion of the very destructive family policies implemented as a result of the mandates of the 1988 Family Support Act. It is extremely important for the underlying philosophy of child support guideline development to shift from uniformity and politically motivated increases, to a system of uniform justice.

This brings me to a very serious problem that I believe a responsible Congress must correct immediately. The Family Support Act of 1988 imposed a mandate on states to apply child support guidelines presumptively. This has led to a system that sets awards arbitrarily, in which no serious weight is given to evidence presented in court. Such a system is unconstitutional; something the courts may eventually deal with. I think however, if we took a poll on the principle involved, we would have no trouble finding a majority of Americans not in favor of such an approach, no matter what the issue. Americans believe in the Bill of Rights. I see no reason for Congress to hesitate to correct this problem.

I want to pass on one more insight that I have gained regarding the effects of the Family Support Act, that Mr. Downey and Mr. Hyde now wish to extend. What I predicted, looking at the Family Support Act in mid- 1989, was that middle and upper income custodial parents would benefit significantly from the reforms; something there is little economic reason or legal authority for Congress to support. Low income mothers, the critical group, would gain very little, and in fact could stand to lose. Data on payments in Washington, DC show that average support payments have more than doubled since 1988, mostly to middle and upper income mothers. Data from Indiana, show that the percentage of young unwed fathers who abandon government collection programs has more than doubled since the Family Support Act, from under 30% to more than 60%.

There can be absolutely no doubt given the information that is currently available, that the system is much to blame for our current problems. The Downey / Hyde proposal is built on the same assumptions regarding the cause of those problems, and continues to build on the mistakes of the past. Congress also needs to reconsider that majority of families that don't receive public assistance. Many of them haven't asked for and don't need federal involvement in their post divorce family. I think it is apparent that it is poor policy to spend vast sums keeping track of these families and completely repugnant for the federal government to intrude so aggressively in the affairs of families that don't need or want their involvement.

CITATIONS

Clarke, Caroline V., 1992, Washington Watch: Deadbeats Beware, Working Women magazine, May, 1992, page 24.

Haskins, Ronald, Andrew W. Dobelstein, John S. Akin, and J. Brad Schwartz, 1985, Estimates of National Child Support Collections Potential and the Income Security of Female-Headed Families, Final Report, Grant #18-P-00259-4-01, Office of Child Support Enforcement, April 1, 1985.

OCSE, 1990, Child Support Enforcement, Fifteenth Annual Report to Congress, For the Period Ending September 30, 1990, U.S. Department of Health and Human Services, Admin for Children and Families, Off of Child Support Enforcement.

Williams, Robert G., 1987, Development of Guidelines for Child Support Orders: Final Report, U.S. Department of Health and Human Services, Office of Child Support Enforcement, March, 1987.

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